I. SUMMARY

1. On March
20, 2001, Rafael Jorreto Veiga (hereinafter “the petitioner”) submitted
a petition to the Inter-American Commission on Human Rights (“the IACHR”
or “the Inter-American Commission”), against the Republic of Chile (“the
Chilean State” or “the State”) for the alleged violation of the rights
of the child (Article 19), provided for in the American Convention on
Human Rights (“the American Convention”), to the detriment of his minor
son Diego Rafael Jorreto Bonilla, said to have occurred due to the
alleged irregularities in the judicial proceeding that granted
definitive guardianship to the minor’s mother; and because he has been
unable to see his son since December 21, 1998, since his lawsuit
regarding his visitation regime as the father was dismissed.

2. The
petitioner argues that the mother attained custody of the minor child
(Case No. 2709-97 Third Court of Minors), and dismissal of the lawsuit
regarding visitation (Case No. 2030-99 Fourth Court of Minors)
“extra-legally, by maneuvers and influence-peddling in the courts,” due
to biased reports by the Forensic Medicine Institute (Instituto Médico
Legal) prepared “as part of an action managed and coordinated to make me
appear abnormal, which would be useful for them to discredit everything
that I might allege.”

3. With
respect to admissibility, the State argued that the petition should be
found inadmissible pursuant to Article 46.a, b, and c of the American
Convention, since the petitioner failed to exhaust the remedies the
domestic jurisdiction afforded him for reviewing his claim seeking
regulation of the visitation regime. It also alleged that based on the
fourth-instance test, the petition should be considered “manifestly
groundless and out of order.” With regards to the guardianship and the
visitation regime, the State indicated that none of the judges who
issued rulings in those cases violated rights of the child, and that to
the contrary their actions were guided precisely by the paramount
interest of the child.

4. After
analyzing the parties’ positions, the IACHR concludes in this report
that the case is inadmissible, in light of Articles 46 and 47 of the
American Convention. Accordingly, the Commission notifies the parties
of this report and decides to publish it and include it in its Annual
Report.

II.
PROCESSING BEFORE THE COMMISSION

5. The
Inter-American Commission received the complaint on March 20, 2001, and
assigned it number 180-01. After an initial review, in keeping with
Article 26(2) of the Rules of Procedure, the Executive Secretariat
requested additional information from the petitioner. On June 25, 2003,
the IACHR forwarded its pertinent parts to the Chilean State, asking
that it submit any observations. On September 17, 2003, the State
sought an extension, which was granted that same day by the IACHR.

6. On
December 12, 2003, the State submitted its observations, and on the same
date the petitioner’s observations were forwarded to the State, which
was given one month to answer. On September 5, 2004, the State’s
observations were forwarded to the petitioner, who was given one month
to submit his arguments. On October 12, 2004, an extension requested by
the petitioner was granted. Once the petitioner’s communication was
received, it was forwarded to the State on December 1, 2004, which once
again was given one month to respond.

7. On
February 3, 2005, the State sent in its observations, which were
forwarded that same day to the petitioner, who was given one month to
answer. On September 12 and 13, 2005, the petitioner provided additional
information, whose pertinent parts were sent to the State on October 6,
2005. On November 4, 2005, the petitioner provided additional
information, whose pertinent parts were forwarded to the State on
December 7, 2005. Also on November 4, 2005, the State forwarded
additional information, whose pertinent parts were forwarded to the
petition on December 2, 2005.

8. On
November 8, 2005, additional information provided by the petitioner was
passed on to the State. On April 12, 2006, and August 9, 2006, the
petitioner again provided additional information.

III.
POSITIONS OF THE PARTIES

A. The
petitioner

9. The
petitioner indicates that on December 21, 1998, the judgment was issued
that gave definitive guardianship of the minor Jorreto Bonilla to the
mother, but that it failed to regulate the visitation regime for the
father. The judgment was appealed by the petitioner, and on August 12,
1999, it was affirmed on appeal. On August 18, 1999, Mr. Jorreto Veiga
filed a complaint appeal (recurso de queja) before the Supreme
Court, which was declared inadmissible. On September 3, 1999, he filed
a motion for reconsideration (recurso de reposición) before the
Supreme Court, to amend the ruling that denied the recurso de queja.
No additional information was received about the processing of that
motion.

10. The
petitioner questions the granting of definitive guardianship to the
mother because he alleges that grave psychopathies were certified in the
proceeding on family violence; that expert reports and determinations of
liability for physical and psychological abuse were hidden; and due to
the fact that the judges apparently relied on a report from the Forensic
Medicine Institute (Instituto Médico Legal) that the petitioner
describes as false and fraudulent.

11.As
regards the visitation regime, the petitioner indicates that he ended up
having no attorney to represent him because it was impossible for him to
secure a lawyer who would withstand the “influence-peddling.” On this
basis, he asked the Fourth Court of Minors to authorize him to
personally monitor the proceeding, which, according to his argument, was
never answered. The petitioner adds that he has been looking into the
status of the matter personally and through third persons on different
occasions. He notes that on trying to find out in December 2002, the
clerks of court answered that the proceeding had not gone anywhere, that
it had been archived for more than a year, and that there was no
resolution whatsoever regarding visitation. Finally, the petitioner
notes that he was never notified of the judgment of June 7, 2002, which
rejected his request for a visitation regime in the proceeding
identified as Case 2039/99.

12.In
view of these considerations, the petitioner asked that “his complaint
be taken into account” because of “the chaotic performance of the
Chilean courts.”

B. The
State

13. The State
asked that the petition be declared inadmissible, because the petitioner
did not comply with Article 46.1.a of the American Convention, on
failing to appeal the judgment of June 7, 2002, which rejected his
action seeking establishment of the visitation regime.

14. As
regards the guardianship proceeding (Case 2709-97) before the Third
Court of Minors, the State indicates that definitive guardianship was
awarded to the mother. The court relied on a report from the Forensic
Medicine Institute (Instituto Médico Legal), which established that the
mother is in a position to exercise her rights as such.

15. The State
indicates that the action on the visitation regime was rejected based on
psychological reports and reports from the social service that recognize
that the child perceives the father as “a threatening figure for his
stability, and that he did not wish to have visits with him.” In
addition, it notes that a motion of appeal could have been brought
against that judgment, but that the petitioner failed to do so.

16. The State
concludes that the domestic courts, in ruling on the petitions filed by
Mr. Jorreto Veiga, abided strictly by the standards of due process, and
in timely fashion. Accordingly, it considers that the Inter-American
Commission is not competent to review the decisions of the Chilean
courts, adopted after a legal proceeding that was processed reasonably.

IV. ANALYSIS
OF ADMISSIBILITY

17. The
petitioner is authorized by Article 44 of the American Convention to
file complaints before the IACHR. The complaint notes as the alleged
victim an individual with respect to whom the Chilean State undertook to
respect and ensure the rights enshrined in the American Convention. As
regards the State, the Commission observes that Chile is a state party
to that international instrument, which it ratified on August 21, 1990.
Therefore, the IACHR is competent ratione personae to examine the
petition.

18. In
addition, the Commission is competent ratione materiae because
the petitioner alleges a violation of a right protected by the American
Convention which, if proven, could constitute a violation of its Article
19. Specifically, the petitioner alleges that due to the
“irregularities” in the judicial proceedings described, the child
Jorreto Bonilla has been unable to see his father since December 21,
1998, thereby triggering the international responsibility of the State.

19. The IACHR
is competent ratione temporis, insofar as the obligation to
respect and ensure the rights protected in the American Convention was
already in force for the State by the date that the facts alleged in the
petition are said to have occurred.

20. The
Commission is competent ratione loci, for petitioner alleges that
a violation of human rights occurred in the territory of a state party
to the American Convention.

B. Exhaustion of domestic remedies and the
six-month period

21. According
to Article 46 of the American Convention, the admissibility of a case is
subject to the condition “that the remedies under domestic law have been
pursued and exhausted in accordance with generally recognized principles
of international law.” This requirement guarantees the state the
opportunity to resolve human rights claims within its own legal
framework before having to face a proceeding before the inter-American
system.

22. The claim
submitted by the petitioner to the inter-American system refers to the
proceeding regarding guardianship of his son, Diego Jorreto Bonilla,
Case 2709-97, which resulted in a decision on appeal unfavorable to his
claim, handed down August 12, 1999. That final decision exhausted
domestic remedies. The petition was received March 21, 2001, 19 months
after that final decision, thus the petition falls clearly outside of
the time period established by Article 46.1.b of the American
Convention.

23. The
Inter-American Commission further observes that the petitioner also
questions the judicial proceedings regarding the visitation regime in
the proceeding identified as Case No. 2030-99. Although this proceeding
was initiated after the firm decision in the guardianship matter, it is
clearly accessory to the principal decision on the matter, in which
there was a final judgment on August 12, 1999. The initiatives taken by
Mr. Jorreto Veiga in that trial could not result in the re-establishment
of the legal situation that he alleges was infringed by the judicial
determination as to custody of his son.
Therefore, proceeding No. 2030-99 cannot push back the beginning of the
Convention’s term of six months, provided for at Article 46.1.b.[1]

24.
Accordingly, the Commission concludes that the petitioner did not timely
file his claim with the IACHR, as required by the American Convention,
so it must find it inadmissible.

V.
CONCLUSIONS

25. Based on
the arguments of fact and law set forth above

THE INTER-AMERICAN
COMMISSION ON HUMAN RIGHTS

DECIDES:

1. To find the
instant petition inadmissible.

2. To notify
the parties of this decision.

3. To publish
the decision and include it in its Annual Report to the OAS General
Assembly.

Done and signed at the
headquarters of the Inter-American Commission on Human Rights, in
Washington, D.C., on the 21st day of the month of October,
2006. (Signed): Evelio Fernández Arévalos, President, Paulo Sérgio
Pinheiro, First Vice-president; Florentín Meléndez, Second
Vice-president, Freddy Gutiérrez, Paolo Carozza and Víctor Abramovich,
Commissioners.